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Wednesday, June 27, 2012

Obama Healthcare and the US Supreme Court: Countdown

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.
The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately. Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision. By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get a policy.
So the individual mandate is one of the clustered issues. The second is whether the Court has the authority to decide the fate of the mandate. And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.
The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867. That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running. It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty. If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014. The final answer might not be known until sometime in 2015, after another round of court review.
The choice before the Court on the AIA issue might appear to be an easy one: if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time. But it actually is not easy. The Court must first decide whether the individual mandate is a tax provision, based on its presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue. And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?
Suppose that the Court finds that the AIA does apply. That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it. That is the three-in-one potential of the AIA question.
But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this. Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional? If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall? But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).
If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress? During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.
This brings the summing-up to the fourth issue, in some ways separated. That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaid program of providing medical care to the poor. This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.
But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues. If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead. And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.